Obeid v Ipp

1. [1]

   The Plaintiffs in these proceedings seek declarations, orders and damages in respect of various reports prepared by the Independent Commission Against Corruption. The proceedings are at the stage where there are disputes about a proposed amendment to the Statement of Claim. I heard a Motion by the Plaintiffs seeking to amend the Statement of Claim. That Motion involved arguments by all of the Defendants, except for the newly added Eleventh Defendant, ICAC itself, about the proposed form of the pleading. At the conclusion of the argument, the Plaintiffs accepted that amendments needed to be made to the proposed draft. A further draft of the Statement of Claim is to be served by 20 November 2015.

2. [2]

   On 27 August 2015 the Plaintiffs served a Notice to Produce for inspection seeking the following document:

3. [3]

   The search warrant itself provides a significant basis for the whole of the pleading. Many of the complaints made by the Plaintiffs have their origin in the execution of the search warrant, the documents that were seized and what happened to those documents and material later relied upon by ICAC to make the findings in the reports issued by ICAC.

4. [4]

   On 7 September 2015 the Third to Tenth Defendants filed a Notice of Motion to set aside the Notice to Produce. The Notice of Motion sought the orders on two bases. The first was that it lacked a legitimate forensic purpose. The second was that the material sought to be produced is the subject of a public interest immunity claim and/or would require a person to produce material to the Court in contravention of s 111 of the Independent Commission Against Corruption Act 1988 (NSW).

5. [5]

   The First Defendant was the ICAC Commissioner at the time of the events complained of. The Second Defendant was Senior Counsel assisting ICAC at the time. The Third to Ninth Defendants are various employees of ICAC who were involved in the matter from the time of the obtaining and execution of the search warrant through to the time when the hearings were held that led to the publication of the reports identified. The Tenth Defendant is the State of New South Wales.

6. [6]

   In the Notice of Motion filed by the Plaintiffs on 6 November 2015 where they sought (inter alia) to file and serve an Amended Statement of Claim, they also sought orders for the production of the same document sought in the Notice to Produce. They did this by reference an open affidavit of Sharon Leigh Loder sworn 11 September 2015. Ms Loder is the Executive Director, Investigation Division, at ICAC and is also the Third Defendant in the proceedings.

7. [7]

   In her open affidavit she made reference to the Notice to Produce and said that she objected to production of a complete and unredacted version of the search warrant application on the basis that paragraph 2(b)(i) contains information relating to matters of State within the meaning of s 130 of the Evidence Act 1995 (NSW) and that public interest in preserving the secrecy of that information outweighed the public interest (if any) in producing the information. She exhibited to her affidavit and placed in an envelope marked “Confidential Exhibit SLL – 1” a true unredacted copy of the search warrant application. She objected to producing the entirety of paragraph 2(b)(i) of that document but had no objection to producing the redacted version which did not include paragraph 2(b)(i).

8. [8]

   The significance of what is contained in the unredacted document is said to be emphasised by what is proposed to be included in the Amended Statement of Claim. Relevant paragraphs in the form of that Statement of Claim about which argument was had include paragraphs 12B and 12C, 132A and 133A.

9. [9]

   Originally the whole of the application for a search warrant was made the subject of a certificate issued pursuant to cl 11 Law Enforcement (Powers and Responsibilities) Regulation 2005 (NSW) by Registrar Lister of the Local Court at Newtown. Locaway Pty Ltd sought a review of the Registrar’s decision. That review came before Williams LCM in the Local Court at Newtown on 19 May 2015. Counsel for ICAC said this:

10. [10]

    Counsel for ICAC also told the Magistrate that Locaway’s lawyer had accepted that assurance. The result was that the parties agreed that the review should succeed and that the application should be made available except in respect of paragraph 2(b)(i) of the document.

11. [11]

    Thereafter, the Plaintiffs obtained a copy of the redacted document but sought a copy of the unredacted document.

Legislation

1. [12]

   Section 111 of the Independent Commission Against Corruption Act relevantly provides:

2. [13]

   Mr Newlinds of Senior Counsel for the Plaintiffs accepted that, as things stood at the hearing of the Motions on 6 November 2015, he could not overcome the refusal of production of the unredacted application for the search warrant by reason of s 111. The Plaintiffs were to send a letter of request to the Local Court for the production of the Local Court file in an endeavour to obtain a copy of the unredacted application. Section 111 of the ICAC Act would not be relevant as far as accessing the unredacted application in that file.

3. [14]

   However, the Third to Fifth and Seventh to Tenth Defendants resisted production of the document on public interest immunity grounds. If that immunity applied it would apply to the copy of the document produced by the Local Court as well as to documents in the possession of ICAC or its officers. I shall refer to these Defendants as the Resisting Defendants. The Resisting Defendants relied on three affidavits of Sharon Leigh Loder being the open affidavit sworn 11 September 2015 earlier referred to, a confidential affidavit of the same deponent sworn 11 September 2015 and a further confidential affidavit of that deponent sworn 5 November 2015.

4. [15]

   Section 131A of the Evidence Act provides:

5. [16]

   Section 130 of the Evidence Act relevantly provides:

Submissions

1. [17]

   The Plaintiffs drew attention to what was said by Basten JA in Attorney General (NSW) v Lipton [2012] NSWCCA 156; 224 A Crim R 177 at [27] – [34], particularly in relation to the balancing exercise involved between the need to preserve secrecy or confidentiality and the public interest in the production of the documents. The Plaintiffs submitted that ICAC had accepted that the concern about disclosure was not a concern in relation to the Plaintiffs. In those circumstances it would be open to the Court to make orders for the disclosure of the information to the Plaintiffs’ lawyers on an appropriate confidentiality regime, following what Wilcox J said in Kanthal Australia Pty Limited v The Minister For Industry, Technology And Commerce (1987) 14 FCR 90 at 95.

2. [18]

   The Resisting Defendants pointed out the limitation on their ability to go into great detail about the substance of the claim without trespassing on the claim itself. They made what they called generic submissions on public interest immunity. In that regard they pointed to what might be considered the relevant matters listed in s 130(4) of the Evidence Act being (c), (e) and (f). The Resisting Defendants submitted that, in any event, the categories of public interest that may be protected by the immunity are not closed.

3. [19]

   They submitted that it might be necessary for the Court considering the claim of public interest immunity to read confidential material put forward by the party relying on the immunity without disclosing that information to the party seeking the document.

Consideration

1. [20]

   In Alister v The Queen (1984) 154 CLR 404 Gibbs CJ said (at 412):

2. [21]

   I accept the Resisting Defendants’ submission that this effectively establishes a three stage process as follows: first, determining whether the evidence sought to be obtained is material; secondly, establishing that there is a sound basis for the claim of immunity; and third, the balancing exercise. Although Alister predates the enactment of the Evidence Act there is nothing to suggest that that three stage process is not equally applicable now. Indeed, what is said in Lipton at [39] supports that view.

3. [22]

   The pleading in the existing Statement of Claim and what is likely to be included in the Amended Statement of Claim (based on the form of the document the subject of argument) satisfies me that the evidence sought to be obtained is or may be material to the way the Plaintiffs put their case. Without making more than general comments about the pleading in the Statement of Claim, and although the Defendants may well join issue with the materiality of the information, I accept that the evidence sought to be obtained is or might be material, although not essential for the claims the Plaintiffs make.

4. [23]

   As to whether there is a sound basis for the claim of immunity, I note what was said by Sully J (with whom Spigelman CJ and Adams J agreed) in Attorney General v Kaddour & Turkmani [2001] NSWCCA 456 at [20] that the terms of s 130(3) meant that:

5. [24]

   I have examined the confidential material and I am entirely satisfied that there is a sound basis for the claim of immunity.

6. [25]

   In Lipton, Basten JA said:

7. [26]

   It is clear from an examination of the unredacted application for the search warrant that the first basis put forward to the magistrate on 19 May 2015 to have the part of the application redacted was entirely justified. In the application of the balancing exercise in this case, the requirement for the material to remain confidential significantly outweighs the public interest in the production of that part of the document.

8. [27]

   Nor do I think it would be appropriate to put in place a confidentiality regime so that the information could be made available to either or both of the Plaintiffs and their lawyers. In some cases that approach may be appropriate where the concerns relating to confidentiality involve commercial interests or were otherwise commercially sensitive in the way discussed in Kanthal Australia. Further, where the documents sought to be produced are “critical to the case” sought to be made, that may be a powerful factor in favour of disclosure: Khantal at 92.

9. [28]

   Different considerations seem to me to apply where the physical safety of a person is concerned. With the best will in the world, the more people who know of a matter the more chance there is for the disclosure of some aspect of the information which can then be linked to other known information that might ultimately result in the safety of the person sought to be protected being compromised.

10. [29]

    In Hilton v Wells (1985) 15 A Crim R 418; 5 FCR 296 Wilcox J said (A Crim R at 429 ):

11. [30]

    I accept that it is an important consideration that justice not be denied to a party because of an inability to obtain access to documents: Alfred Crompton Amusement Machines Ltd v Customs and Excise Commissioners (No. 2) [1974] AC 405; Sankey v Whitlam (1978) 142 CLR 1; Kanthal at 95; and s 130(5)(a) Evidence Act.

12. [31]

    An examination of the existing Statement of Claim and the information contained in the proposed statement of claim that I considered at the hearing of the Motions does not lead me to the view that the information contained in the redacted part of the application is of such significance to the Plaintiffs that they will be denied justice if they are not able to access the material. As I understand the pleading in the existing Statement of Claim and the additional material in the proposed Amended Statement of Claim, the information, whilst material, is not critical to the Plaintiffs’ case.

13. [32]

    Accordingly, I would uphold prayer 2(a) in the Third to Tenth Defendants’ Notice of Motion filed 7 September 2015 and I would refuse prayers 8, 9 and 10 in the Plaintiffs’ Notice of Motion filed 6 November 2015.

Conclusion

1. [33]

   I make the following orders:

   1. (1)

      (1) The claim for public interest immunity in relation to the redacted part of the application for search warrant dated 22 November 2011 referred to as Confidential Exhibit SLL-1 in the Open Affidavit of Sharon Leigh Loder sworn 11 September 2015 is upheld;

   2. (2)

      (2) Set aside the Plaintiffs’ Notice to Produce dated 27 August 2015;

   3. (3)

      (3) Refuse prayers 8 and 9 in the Plaintiffs’ Notice of Motion filed 6 November 2015.